Citation Nr: 9836394
Decision Date: 12/11/98 Archive Date: 01/06/99
DOCKET NO. 95-14 830 DATE DEC 11 1998
On appeal from the Department of Veterans Affairs Regional Office
in Portland, Oregon
THE ISSUE
Entitlement to service connection for a chronic right hip disorder.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans' Affairs
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from September 1989 to September
1993. His report of separation reflects eight months of prior
inactive service.
This case was previously before the Board of Veterans' Appeals
(Board) in December 1996 at which time it was remanded to the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon, for further development with regard to the issue
listed on the title page. The case has been returned to the Board
for appellate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative essentially maintain that he has
a chronic right hip disorder which is attributable to his active
service. Reference is made to the report of a 1995 VA examination
in which it was indicated that the veteran had a right hip
disability which was most likely due to fasciitis and/or
tendinitis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. 7104
(West 1991 & Supp. 1998), has reviewed and considered all of the
evidence and material of record in the veteran's claims file. Based
on its review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board the
evidence supports the grant of entitlement to service connection
for a chronic right hip disability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition of
the veteran's appeal has been obtained.
2. Muscle strain of the right hip clearly and unmistakably pre-
existed service.
3. Muscle strain of the right hip underwent a permanent increase in
severity during service.
CONCLUSION OF LAW
The veteran has a pre-existing chronic muscular strain of the right
hip, which was aggravated in active service. 38 U.S.C.A. 1111,
1131, 1153, 5107 (West 1991); 38 C.F.R. 3.303, 3.306 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the claim for service
connection for a chronic right hip disability is plausible and
capable of substantiation, and thus well grounded within the
meaning of 38 U.S.C.A. 5107(a). When the veteran submits a well-
grounded claim, VA must assist him in developing facts pertinent to
that claim. 38 U.S.C.A. 5107(a). The Board is satisfied that all
relevant evidence has been obtained regarding the veteran's claim,
and that no further assistance to the veteran is required in order
to comply with the provisions of 38 U.S.C.A. 5107(a).
Service connection may be established for a disability resulting
from personal injury suffered or disease contracted in the line of
duty or for aggravation of a preexisting injury suffered or disease
contracted in the line of duty. 38 U.S.C.A. 1110, 1131; 38 C.F.R.
3.303, 3.306. Regulations also provide that service connection may
be granted for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. 3.303(d). In order to
establish service connection, the evidence must demonstrate the
existence of a current disability and a causal relationship between
the disability and military service. See Hensley v. Brown, 5
Vet.App. 155, 159 (1993). Once the evidence is assembled, the
Secretary is responsible for determining whether the preponderance
of the evidence is against the claim. See 38 U.S.C.A. 5107(b). If
so, the claim is denied; if the evidence is in support of the claim
or is in relative equipoise, the claim is allowed. Id. If, after
careful review of all the evidence, a reasonable doubt arises
regarding service connection, such doubt will be resolved in favor
of the veteran. See 38 C.F.R. 3.102 (1998).
Under the provisions of 38 C.F.R. 3.303(b), where a chronic disease
is shown as such in service (or within the presumptive period under
3.307) so as to permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date,
however remote, are service connected, unless clearly attributable
to intercurrent causes. This rule does not mean that any
manifestation of joint pain, any abnormality of heart action or
heart sounds, any urinary findings of casts, or any cough, in
service will permit service connection for arthritis or other
disabilities, first shown as a clearcut clinical entity, at some
later date. For the showing of chronic disease in service there is
required a combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish chronicity
at the time, as distinguished from merely isolated findings or a
diagnosis including "chronic." When the disease identity is
established, there is no requirement of evidentiary showing of
continuity. Continuity of symptomatology is required only where the
condition noted during service (or in the presumptive period) is
not, in fact, shown to be chronic or where the diagnosis of
chronicity may be legitimately questioned. When the fact of
chronicity in service is not adequately supported, then a showing
of continuity after discharge is required to support the claim.
The chronicity provision of 3.303(b) is applicable where evidence,
regardless of its date, shows that a veteran had a chronic
condition in service or during an applicable presumption period and
still has such condition. Such evidence must be medical or also
relate to a condition as to which, under the Court's case law, lay
observation is competent. If the chronicity provision is not
applicable, a claim may still be well grounded or reopened on the
basis of 3.303(b) if the condition is observed during service or
during any applicable presumption period, continuity of
symptomatology is demonstrated thereafter, and competent evidence
relates the present condition to that symptomatology. Savage v.
Gober, 10 Vet.App. 488 (1997).
Evidence
A treatment record from the Beaverton Clinic dated in August 1988,
discloses that the veteran was seen for a complaint of having
injured his right hip when lifting three weeks earlier. When
describing the pain in the right hip, the veteran pointed to the
right sacroiliac. There were no radiologic or radicular symptoms.
On examination, he was described as moving well. The assessment was
sacroiliac strain with overuse.
The veteran's service medical records show that at the time of an
entrance examination into the Marine Corps in December 1988,
reference was made to his having or having had swollen or painful
joints, and broken bones. Notation was made that in April 1988 the
veteran had strained his hips while lifting weights and had seen
someone in Portland, Oregon. On examination for enlistment into
service, it was noted that the veteran was having no problems in
the hips.
In June 1993 he was seen at a service department facility
complaining of low back and hip pain with an 18 month history of
increased pain on running and decreased pain at rest. The
assessment was musculoskeletal versus muscle strain of the lower
back region.
The veteran was accorded a general medical examination by VA in
November 1993. It was indicated his primary complaints were
orthopedic in nature and included right-sided knee pain and
bilateral low back pain. Neurologic examination was essentially
nonfocal. It was noted the veteran was a Persian Gulf war veteran
and that he denied any problems related to exposures while serving
in the Persian Gulf region. It was 'indicated the general medical
examination was normal.
In December 1993 the veteran was accorded an examination by VA for
evaluation of his hips. His first memory of orthopedic problems in
the service was back pain around 1989, possibly related to moving
some heavy materials. He later had some knee and hip symptoms. He
stated that he was on light duty profile for the last three months
of his military service because of knee symptoms. Currently, he
complained of pain in both buttock areas, worse on the right.
Lateral and anterior hip areas were okay. Examination findings
included hip motion from 0 to 135 degrees bilaterally. The right
buttock had some muscular tenderness. The hips were otherwise
nontender. X-ray studies were taken of the knees, but the veteran
did not want any taken of the back or the hips. He indicated the
back and hips had not been X-rayed previously. The assessments
included hip pain at the buttock only, mostly on the right. "This
is diagnosed as chronic muscular strain plus some referred pain for
the low back. Hip joints are okay on examination, and the pain
probably does no (sic) represent hip joint pain."
By a rating decision dated in April 1994, service connection was
granted for: Low and midback muscular strain; chronic synovitis and
patellar chondromalacia of the right knee; and chronic synovitis
and patellar chondromalacia of the left knee. Noncompensable
evaluations were assigned for each. The veteran was given a 10
percent rating under the provisions of 38 C.F.R. 3.324 (1998).
The veteran was accorded another rating examination by VA in
October 1995. Complaints included some pain in the right hip area,
in particular when riding his motorcycle. He stated that he felt as
though he was having a muscle spasm in the hip. He gave no history
of trauma to the hip and did not associate the right hip pain with
his back pain when "it is acute."
Current examination findings showed some muscular tenderness in the
right gluteal area. There was no evidence of deformity. There was
no trochanteric tenderness. Motion was from 0 to 100 degrees of
flexion, 45 degrees' abduction, 30 degrees' internal rotation, and
25 degrees' external rotation. The diagnoses included "right hip
pain is most likely due to a fasciitis and/or tendinitis."
In December 1996 the case was remanded, in pertinent part, in order
that the veteran might be accorded an examination by an appropriate
specialist in order to determine the nature of any right hip
disorder present and to express an opinion as to whether it was at
least as likely as not that it was of service onset.
The veteran was accorded an examination of the hip by VA in
September 1997. The examiner noted that he had seen the veteran in
1993. The veteran recalled some buttock pain before service,
probably mostly on the right. He also recalled having some low back
pain before service. He did not recall any particular treatment for
his problems before service. He recalled some continuing back and
buttock pain in basic training and also some numbness in both feet.
He stated that he received treatment 'in the military for back and
hip pain. He claimed that he was on light duty status at least once
for back and hip pain late in his military career. He reported that
he was at full duty status for the last three months of service and
he stated that he could do full duties, including fall physical
training at that time, despite having some symptoms. The veteran
complained primarily of having back pain. He stated that the hip
was "doing pretty well now." However, he reported the hip tended to
get worse whenever he was very active. He denied having received
any treatment for anything for the past six months.
On examination it was noted that he did not limp. He was able to
walk on his toes and heels. Hip motion was from 0 to 140 degrees
bilaterally. Rotation and abduction were normal and equal. There
was some left buttock pain with the movements and there was some
muscular tenderness at the left buttock. The hips were otherwise
nontender.
The veteran stated that he had never had a hip X-ray done and he
did not want to have one done at the present time.
The examiner noted that, while a diagnosis was requested only for
the hip, he added the back because of overlapping symptoms. It was
indicated the hip had a history of pain before service, during
service, and since service. Hip pain had always been mostly on the
right side, and mostly in the buttock region. Continuing hip
symptoms were diagnosed as muscular strain plus referred pain from
the back. The hip joints were normal on current examination.
The examiner noted that the claims folder was available for review,
and this included the military records. The examiner stated that
the veteran's hip pain was primarily buttock pain which the veteran
had had before service. However, he noted this was worsened in
service. It was indicated the condition had turned to being fairly
comfortable again, although "it might increase some with increased
activities." The buttock pain was not related to military service,
other than that it was more bothersome while in service. There was
no evidence that there was any permanent damage to the buttock area
while in service. The examiner further related that the only
evidence that symptoms were somewhat worse since service was that
the veteran had found that the buttock got worse if he engaged in
strenuous activities. The examiner stated that "some of the hip
pain represents referred pain from the back and some of this was
worsened by military."
Analysis
A veteran is presumed to be in sound condition when examined and
accepted into service, except for defects, infinities or disorders
noted at the time of the examination, acceptance and enrollment for
service, or where clear and unmistakable evidence demonstrates that
the injury or disease existed before acceptance and enrollment and
was not aggravated by such service. 38 U.S.C.A. 1111 (West 1991).
In the instant case, a history of right hip strain was noted at the
time of the veteran's examination for entrance into service.
However, there were no actual findings of right hip disability at
the time of that examination. The mere notation of history does not
rebut the presumption of soundness. Crowe v. Brown, 7 Vet. App. 238
(1995).
Clear and unmistakable evidence is necessary to rebut the
presumption of soundness in this case. The evidence is clear and
unmistakable that the veteran's right hip strain pre-existed
service. There is a medical record of treatment for hip pain prior
to service. The veteran conceded such treatment, a history of pre-
existing hip disability was noted at the time of the veteran's
entrance into service, and the examiner conducting the September
1997 VA examination concluded that the disability pre-existed
service. There is no evidence to the contrary.
The remaining question is whether the pre-existing right hip muscle
strain was aggravated in service. Where a pre-existing disability
undergoes an increase in severity during service there is a
presumption of aggravation. 38 C.F.R. 3.306(a). The service medical
records in this case show that the veteran did experience an
increase in hip pain during service. A VA examiner has reported a
current diagnosis of muscle strain in the right hip. The examiner
has also expressed the opinion that there was some increase in that
disability since service, in the sense that the veteran experiences
a worsening of symptoms on strenuous activity. The examiner also
opined that the veteran's current hip pain was worsened by military
service. On the basis of this record, the Board concludes that the
veteran's preexisting right hip disability, chronic muscular
strain, was aggravated in service. Accordingly, the Board concludes
that the veteran's chronic muscular strain of the right hip is
related to his period of active service and, therefore, service
connection is warranted.
ORDER
Service connection for a right hip disability, namely chronic
muscular strain of the right hip is granted.
Mark D. Hindin
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 &
Supp. 1997), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November, 18 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, 402, 102 Stat. 4105, 4122 (1988).
The date which appears on the face of this decision constitutes the
date of mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal by the
Board of Veterans' Appeals.